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State high court denies attempt to suppress evidence

ATLANTA — The Georgia Supreme Court has ruled that evidence of marijuana growing can be used in an upcoming trial despite the defendant's argument that it was improperly obtained with a thermal imaging scan, according to an opinion published Monday.

James Brundige has pleaded not guilty to multiple charges related to growing marijuana. He argued that evidence found by authorities should be suppressed because one of the searches was for heat loss, which isn't "tangible evidence" under state law.

The state's highest court agreed that heat loss patterns aren't tangible evidence, but said that searches of the house were permissible because other information obtained by investigators was enough to establish probable cause.

The case began when a police officer acting on a tip found "an amount of marijuana in a size that is consistent with a marijuana grow operation" in an outdoor garbage can at Brundige's house, according to the opinion. The officer also learned Brundige had previously been arrested twice on marijuana possession charges. The officer also found that Brundige's home was using considerably more electricity than a neighboring home.

Citing his investigation as probable cause, the officer asked for a search warrant to remotely detect unusual heat patterns, including "hot spots" consistent with high-intensity lights for growing marijuana. The judge gave investigators permission to search for "anomalous heat loss" at the home.

A detective using a thermal scanning device noticed a lot of heat coming from the garage, leading him to believe marijuana was being grown. The detective sought a second warrant to search the inside of the home based on what he found. The judge granted that warrant.

A search of the home on May 29, 2009 turned up various amounts of dried and growing marijuana, pills of the sedative clonazepam, growing lights, a tally sheet in Brundige's wallet and related items, according to court filings.

Brundige has pleaded not guilty to charges of manufacture of marijuana, possession of marijuana with intent to distribute and possession of a controlled substance.

He filed a motion to suppress the evidence from the two searches when the case goes to trial. He argued that the first search warrant, which designated "anomalous heat loss" as the item to be seized wasn't authorized under Georgia law. State law allows the seizure of any "item, substance, object, thing, or matter, other than the private papers of any person which is tangible evidence of the commission of the crime for which probable cause is shown."

The state's highest court found that the state Court of Appeals was incorrect when it determined the evidence in question is "tangible evidence," but said that does not require a reversal of the decision.

The court said the second warrant, which authorized the search of the home, "was supported by the same information as that which was in the first warrant, with the only additional information being that gained from the thermal imaging search."

Since the evidence presented for the first warrant was considered enough to establish probable cause, the evidence seized under the second warrant is admissible, the high court ruled.